A conscientious Officer may indeed resign,
rather than be employd in an unjust War. -- Ben Franklin, 1785

Dear Major General Charles Jacoby, Jr.:

Congratulations on your nomination to Commanding General at the Army post in Fort Lewis.

Many weeks have passed since Judge John Head, over objections of defense attorney Eric Seitz, declared a mistrial in the Army Court Martial of Lt. Ehren Watada at Fort Lewis, Washington. As you know, General, the first commissioned officer who refused deployment to Iraq faces six years in prison on three charges: missing movement, conduct unbecoming an officer, and use of contemptuous words for the President. The second Court Martial is set for mid-July.

As a concerned civilian, I have followed the hearings for many months. While I do not represent any group or individual, I am writing you because now is a good time to drop all the charges against the Lieutenant, to bring closure to a trial that, in my opinion, should never have taken place.

The Watada trial, which has already gained national and international attention, comes in the aftermath of three Army scandals: the Abu Ghraib scandal that humiliated our troops; the Walter Reed Hospital scandal, that demonstrates Army disregard for the welfare and dignity of our veterans; and the official disinformation campaign around the death of Cpl. Pat Tillman. Notwithstanding overwhelming evidence of command involvement in the torture system at Abu Ghraib, no Pentagon civilian or senior military official even faces prosecution for the ignominy of Abu Ghraib. Nor are there any prosecutions around the Tillman affair. The refusal to court martial violators, combined with the eagerness to court martial whistle blowers, gives an impression that our judicial system in the Army is designed to protect officials from accountability. Our Army is passing through a crisis of moral credibility, and the trial of Watada, far from restoring respect, only deepens disillusionment with our military institutions.

Soldiers Do Not Forfeit Their Right To Speak
I cannot address all of the issues around the Watada case in a single letter. But I am especially concerned about Army attempts to suppress the right of our soldiers to speak in public, to participate in the political process. Originally conduct unbecoming referred to offenses like drunken behavior, rape, adultery. Now the Army seeks to make political speech a crime. Of course our troops are expected to follow legal orders in lawful wars. But when they agree to serve their country, they do not forfeit their political rights. The military has jurisdiction over military matters, not over political ideology of our soldiers.

It was August 12th, 2006, when Lt. Ehren Watada delivered the now-famous speech to the Veterans for Peace Convention. He was not in uniform when he delivered the address, and there was a quiet humility in the manner in which he spoke. He was honored, he said, to be in the company of American veterans, patriots out of uniform. He warned his listeners about the history of war, about decent soldiers who are often used for ill-gain, and he called on Americans to remember that their duty to the Constitution and the people supersedes the ideologies of leadership.

The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war. An order to take part in an illegal war is unlawful in itself.

There was nothing nasty or offensive in his speech. No cursing, no personal attacks, no expressions of hatred. Watada merely described the fraudulent nature of the invasion, the role of the government in manufacturing the case for war. Of course you know, General, that there is overwhelming evidence to validate his claims, and that Judge Head refused to allow Watada to prove the truth of his claims in court. Watada also pointed out that pre-emptive war is illegal, an argument with which the worlds jurists agree. Pre-emptive war was explicitly repudiated at Nuremberg, and is outlawed in the U.N. Charter. You know -- all Army commanders know very well -- that all U.S. treaties, according to our Constitution, are part of the supreme law of the land. The Army Field Manual also requires adherence to U.S. Treaties and international conventions. Watada is a vindicator, not a violator of the rule of law.
I have read Watadas speech many times. I have yet to hear a professional speaker, like a Senator, deliver an address as eloquent and dignified on the subject of war and the rule of law as Watada delivered that fateful, heroic day in Seattle, where he received a standing ovation from veterans and peers who know the pain and pity of imperial war.

For that speech, combined with another like it, Watada could spend two years in prison. A great wrong is taking place at Fort Lewis, General.

There is absolutely no constitutional basis to put Watada on trial for his soulful speech. The right of all soldiers to participate out of uniform in the political process is a serious First Amendment issue. It makes no sense to claim that soldiers have a right to vote when, in reality, they are only allowed to express one point of view; when they may even be imprisoned for mentioning the lies of the president. At present, it is the prosecutions position that soldiers have a duty to remain silent in the face of lies of their president. That is wrong. Voting and speech are mutually dependent. It is one thing for soldiers to accept legal military discipline. That is legitimate. But it is another to forfeit the right to think for themselves. We need a strong Army prepared to defend our country from attack. But military censorship should never be used to enforce an ideological agenda, an imperial view of Americas role in the world.

It also occurs to me, Sir, that while Watadas address about war and constitutionalism is now on trial, the Army has a long record of tolerating, even promoting, racist hate-speech against Iraqis and all Arabs . In Army life today, Arabs are commonly called ragheads and sand-niggers. Notwithstanding the destructive role of racist speech in military conduct (racism blurs distinctions between enemies and friends, drives youth to commit war crimes, and generates retaliation), I know of no case in which an officer has been charged with conduct unbecoming for anti-Arab, racist language. Yet quoting Jefferson and the Constitution can get you busted.

Soldiers Did Not Volunteer To Break The Laws Of War
Throughout the pre-trial hearings, chief prosecutor Captain Daniel Kuecker (who was eventually taken off the case), insisted that soldiers like Watada have no right to question authority because they volunteered to serve.

We need to set the record straight. Yes, Watada did volunteer to risk his life to defend his country from a real attack. He served in Korea. He volunteered to serve in Afghanistan. He volunteered to follow all legal orders, to participate in any legal war, war based on the principle of defensive necessity. However, Watada never volunteered to violate human rights, to participate in collective reprisals against entire cities like Fallujah. He did not volunteer to violate American treaties, to participate in aggression. After all, a contract to break the law has no legal standing.

At the same time, American senators voluntarily ratified the U.N. Charter. The president, his commanders -- all elected officials -- voluntarily took an oath to uphold and defend the Constitution, which makes treaties part of the law of the land. No one forced any of them to take that oath.

Watada, as an Officer, took the same oath as his Commander-in-Chief to defend the Constitution. And Watada has kept his promise.

It is true that all military systems operate through a chain of command, and that soldiers are expected to follow orders. But the authority of command depends on the legality of the orders. The legal status makes all the difference.

The real issue then, is not the so-called voluntary nature of the enlistment contract, but the bait-and-switch tactics of the military. Our youth enlist in good faith to defend the country from attack. Yes, we need a strong Army for defense. But suddenly -- involuntarily --they are transformed into perpetrators and pawns of empire. Its the government, not war resisters, that is responsible for a breach of contract.

Costs Of Suppressing Speech
The suppression of speech, especially reprisals against whistle blowers and soldiers of conscience, has already cost our country dearly.

Five months prior to the Abu Ghraib scandal, a soft-spoken Army soldier named Camilo Mejia was visibly upset by the atrocities he observed at the infamous prison center. Also repelled by the slaughter of civilians and the needless deaths of American GIs, Camilo gathered up his courage and made formal complaints to his superiors. He disassociated himself from the unrestrained brutality and carnage. Though he was rebuffed, he persisted. He wrote letters about specific wrongs to his superiors. Commanders refused to listen and questioned his patriotism. Eventually Mejia, who became a conscientious objector, was sentenced to a year in prison for speaking out, for telling the truth. In his trial, military Judge Col. Gary Smith ruled that international law is irrelevant.

In the context of the Watada trial, I urge you to think seriously about the Mejia case. Had Mejias superiors listened to his complaints, had they respected the right of soldiers to speak up on behalf of law, both moral and codified, many of the horrific subsequent events, acts of torture and murder that shamed our country, might never have occurred. As a result of enforced silence and judicial abdication, the Army (and CIA) at Abu Ghraib sunk deeper and deeper into depravity. Yet the Abu Ghraib scandal, as we know it, could have been prevented. Abu Ghraib destroyed the morale of our troops; it generated vengeance and blowback.

Isnt there a lesson here, General, a lesson that applies directly to the pending trial of Ehren Watada? Soldiers who dare to speak the truth, to appeal to the rule of law even in war, protect us from ourselves, from our worst tendencies in war. The renowned New York Times war journalist Chris Hedges writes: War forms its own culture. War exposes the capacity for evil that lurks not far below the surface in all of us. In the darkness of war, the Mejias and Watadas are miners canaries. To imprison them one by one, is to invite further destruction and degradation. Like Camilo Mejia, Lt. Watada is not speaking on behalf of himself. He is speaking and acting in support of all American troops who deserve protection of the democratic principles and laws for which they risk their lives.

That is why I appeal to you to change direction at Fort Lewis, to cancel the trial of Lt. Watadanot only on technical grounds of double jeopardy, but because the Army at this time is in no position to give Watada a fair trial. Put high level officials responsible for Abu Ghraib on trial; prosecute the conspirators in the Tillman affair. But let our brave officer retire. He has performed a service for his country. He has taken a stand for which his comrades in the Army can be proud.

I realize that, as a general whose decisions affect thousands of lives, you are in very difficult position. You face the same kind of dilemma that Watada confronted when he learned about the mendacity of the President and Secretary of Defense. No doubt you feel an obligation to your Commander-in-Chief, and you are expected to carry out his policies. At the same time, you voluntarily took an oath to uphold and defend the Constitution. Ultimately your highest orders, orders that define and qualify all others, come from the people themselves, from the Constitution that binds us together as a nation. Fidelity to the Constitution, not abject submission to any individual, is the final test of patriotism in America. When the requirements of law conflict with policies of individual command, generals as well as their troops face a moral crisis. These are the times that try soldiers souls.

I am not asking you to become a rebel. But I do invite you to consider the principle involved in Watadas challenge. Even before our Constitution was ratified in Philadelphia, Ben Franklin commented on the inalienable right of officers to defy orders in an unjust war. The wise old freedom fighter wrote: It has been for some time a generally receivd Opinion that a military Man is not to enquire whether a War be just or unjust; he is to execute his Orders. All Princes who are disposed to become tyrants must probably approve of this Opinion. But is it not a dangerous one? Since, on that Principle, if the tyrant commands the Army to attack and destroy an unoffending Neighbour Nation, even his own Subjects, the Army is bound to obey.

No, no, Ben Franklin cries out: A conscientious Officer may indeed resign, rather than be employd in an unjust war.

I do not expect you to sacrifice your career. Our country needs your expertise and dedication. But you are not helpless. Nor are you ignorant of your constitutional obligations. Accordingly, I do ask you to join your peers and do some soul searching. I believe it is within your power to cancel the trial that should never have taken place. You and your commanders are in a position to put pressure on those above you. The constitutional crisis, to which Watada calls attention, is an Army crisis. It threatens the very legitimacy of military service. The dignity of Fort Lewis now depends on how you and your fellow commanders to respond to the profound issue of law and war.

Whatever you decide, history will vindicate the courage of Lt. Ehren Watada.